RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         19 July 2006
      DOCKET NUMBER:  AR20050017177


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Donald L. Lewy                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his under other than
honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, that he entered the service at age 17,
for training in military occupational specialty (MOS) 63C (Track Vehicle
Mechanic); however, half way through his training, he was told he was
failing the course and he was taken out and transferred to training in MOS
36H; however, he was not qualified to train in this MOS due to being color
blind.

3.  The applicant provides the following documents in support of his
application:  Separation Document (DD Form 214); Report of Medical
Examination (SF 88); and 3 Letters of Support.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 25 October 1979.  The application submitted in this case
is dated
7 November 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 13 October 1978.  He reported to Fort Knox, Kentucky
to attend One Station Unit Training (OSUT) in MOS 63C on 9 October 1978.
After being released from MOS 63C, he reported to Fort Gordon, Georgia to
attend advanced individual training (AIT) in MOS 36H on 9 April 1979.

4.  On 15 June 1979, a Commander's Faculty Board Analysis Report (DA Form
2496) was completed by the applicant's unit commander.  It indicated that
the applicant could not satisfy the requirements of the 36H course due to
color blindness.  It further indicated that the applicant exhibited a
negative attitude; however, he had the potential to be an excellent
Solider.

5.  A Faculty Board Action (DA Form 2496), dated 15 June 1979, shows it was
determined the applicant should be relieved from the 36H course based on
his not being qualified for the MOS due to color blindness.  The applicant
accepted the recommendation of the faculty board.  A request for a new
training assignment was made on 19 June 1979, and the applicant was
selected for reassignment to Fort Lee, Virginia.

6.  On 11 July 1979, the applicant departed absent without leave (AWOL)
from his unit at Fort Gordon, Georgia.  He remained away for 37 days until
returning to military control at Fort Bragg, North Carolina on 16 August
1979.

7.  The applicant's record confirms the applicant never completed training
in any MOS, and it documents no acts of valor, significant achievement, or
service warranting special recognition.

8.  On 4 September 1979, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for being AWOL from
on or about 11 July through on or about 16 August 1979.

9.  On 5 September 1979, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized by the Uniform Code of Military
Justice (UCMJ, the possible effects of an UOTHC discharge, and of the
procedures and rights available to him.  Subsequent to receiving this legal
counsel, the applicant voluntarily requested discharge for the good of the
service in lieu of trial by
court-martial.

10.  In his discharge request, he acknowledged that he was guilty of the
charge against him, or of a lesser included offense therein which also
authorized the imposition of a bad conduct or dishonorable discharge.  He
further indicated that he understood that if his request for discharge was
approved that he could receive an UOTHC discharge, and that he understood
the possible effects of this discharge.  He also indicated that he
understood that as a result of receiving an UOTHC discharge he could be
deprived of many or all Army benefits, that he could be ineligible for many
or all benefits administered by the Department of Veterans Affairs (VA),
and that he could be deprived of his rights and benefits as a veteran under
both Federal and State Law.  The applicant elected not to submit a
statement in his own behalf.

11.  On 18 October 1979, the separation authority approved the applicant's
request for discharge and directed that he receive an UOTHC discharge and
that he be reduced to the lowest enlisted grade.  On 25 October 1979, the
applicant was discharged accordingly.
12.  The DD Form 214 issued to the applicant upon his separation shows that
he received an UOTHC discharge after completing a total of 11 months and 7
days of creditable active military service, and having accrued 37 days of
time lost due to AWOL.

13.  The applicant provides 3 letters of support from members of his
community that attest to his good character.  They indicate he is a
respected member of his church, and that he participates in volunteer
programs assisting teens.

14.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was unjust because he was
only 17 when he enlisted, and that he never should have been sent to 36H
training because he was color blind, and the supporting documents he
submitted, were carefully considered.  However, these factors are not
sufficiently mitigating to support an upgrade of his discharge at this late
date.

2.  Although the applicant's post service conduct has been admirable, as
evidenced in the supporting letters provided, the evidence of record
confirms the applicant was charged with the commission of offenses
punishable under the UCMJ with a punitive discharge.  After consulting with
defense counsel, the applicant voluntarily requested discharge from the
Army in lieu of trial by court-martial.  In his request for discharge, he
admitted guilt to the charge against him, or of a lesser included offense,
that also authorized the imposition of a punitive discharge.

3.  The record further confirms that all requirements of law and regulation
were met, and that the rights of the applicant were fully protected
throughout the separation process.  Further, his discharge accurately
reflects his overall record of undistinguished service.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 October 1979, the date of his
separation. Therefore, the time for him to file a request for correction of
any error or injustice expired on 24 October 1982.  He failed to file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JEV__  ___BJE _  __DLL___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____James E. Vick_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050017177                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/07/18                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1979/10/25                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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